By Lauren Drummond

A decision of the Fair Work Commission (FWC) has affirmed that employers can rely on conduct discovered after an employee’s dismissal if it is relevant to the merits of an unfair dismissal claim.

In Shayne Finemore v CMIB Insurance Services P/L (2016), an account executive, Ms Finemore, was summarily dismissed when her employer discovered that she had sent “highly sensitive” information to her private email account. Ms Finemore brought an unfair dismissal proceeding where she argued the email contained a “renewal list” to assist her to track her workload, and not a client list as alleged by the company.

During the proceeding, the company gave evidence that following the dismissal of Ms Finemore it was informed by a rival brokerage firm that she had supplied them with a USB to upload some personal photographs. On inspection of the USB, a director of CMIB Insurance found that Ms Finemore had uploaded confidential information of the company, including client lists and other working documents. The company sought to rely on this misconduct to bolster its unfair dismissal defence.

Commissioner Gregory concluded that the employer was entitled to rely on this discovery of misconduct, even though it came to light after her dismissal, because it provided further confirmation that the company had a valid reason to dismiss her. In particular, the evidence established that Ms Finemore had, on several occasions, breached the confidentiality obligations set out in her employment agreement.

Lessons for you

This case builds on several previous decisions of the FWC that indicate that information acquired after the time of dismissal can be taken into account by the FWC in determining whether a dismissal was harsh, unjust or unreasonable, even if the employer was unaware of those facts at the time and did not rely on them when the dismissal occurred.

The stipulation on using such evidence is that the facts must concern the circumstances in existence when the decision was made.